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Plaintiff, an emergency medical technician, got fired after he commented on his coworker’s Facebook status update. The coworker had complained in her post about belligerent patients and the use of restraints. Here is plaintiff’s comment:

Yeah like a boot to the head…. Seriously yeah restraints and actual HELP from [the police] instead of the norm.

After getting fired, plaintiff sued his former employer for, among other things, “intrusion upon seclusion” under Texas law. That tort requires a plaintiff to show (1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion or private affairs that (2) would be highly offensive to a reasonable person.

The trial court threw out the case on summary judgment. Plaintiff sought review with the Court of Appeals of Texas. On appeal, the court affirmed the summary judgment award.

The court found plaintiff failed to provide any evidence his former employer “intruded” when it encountered the offending comment. Plaintiff had presented evidence that he misunderstood his co-worker’s Facebook settings, did not know who had access to his co-worker’s Facebook Wall, and did not know how his employer was able to view the comment. But none of these misunderstandings of the plaintiff transformed the former employer’s viewing of the comment into an intentional tort.

But there are a couple important differences in modern and social media versus the 1940s.

Because of the faster means to get the word out, there is even more pressure for a media outlet to be the first. (The same kind of pressure, felt by a humble blogger like me to be among the first to analyze the issues herein is making it difficult for me to type right.) And members of mainstream media are not just competing against other mainstream media participants. As @roncolemantweeted, “[t]he central role of @SCOTUSblog in this discussion is the truly historical event occurring today.” (@SCOTUSblog’s coverage of the decision was driven largely by the work of 81-year-old Lyle Denniston.)

And it’s easy to forget that mistakes in reporting can easily be undone. Unlike the paper in the Dewey Defeats Truman situation, which had to literally stop the presses, reset the type, print out new stacks of papers and physically deliver them hours later, the CNN website was changed immediately with little human effort. And the fact that CNN got it wrong couldn’t have harmed anyone, given that there were millions of commentators on Twitter to instantly lampoon it, thereby drawing attention to the error.

2. It’s not just law professors who can be constitutional scholars

@jonathanwpetersobserved the profundity of how the discourse on Twitter had become erudite by simply noting: “June 28, 2012: the day that “Commerce Clause” trended on Twitter.” But maybe that eruditeness is just a facade. @jbtaylorgives us a warning: “Brace yourself. Everyone on Twitter is about to become a Constitutional scholar.”

3. Everyone’s a comedian and all the world’s a comedy club

Probably the best part of the social media response to the decision is the humor. Here are a few of my favorite tweets that look at the farcical side of this:

“Remember when John Roberts botched the President’s swearing-in on Inauguration Day? I think they’re all good now.” (by @johnsberman)

“I felt a sudden disturbance in the Law, as if millions of nascent law review articles cried out, and were suddenly silenced.” (by @timhwang)

“Tea Party just turned into a massive kegger as the last spare change has gone to buy all the beer left in St. Louis ‪#wow‬ (by @mimizhusband)

“Now that that’s over who wants to grab a Coke and watch some porn” – Clarence Thomas (by @platypusjones)

The headline of this recent blog post by the U.S. government promises to answer the question of why you should do some social media estate planning. But the post falls short of providing a compelling reason to plan for how your social media accounts and other digital assets should be handled in the event of your demise. So I’ve come up with my own list of reasons why this might be good both for the individual and for our culture:

Security. People commit identity theft on both the living and the dead. (See, for example, the story of the Tennessee woman who collected her dead aunt’s Social Security checks for 22 years.) While the living can run credit checks and otherwise monitor the use of their personal information, the deceased are not so diligent. Ensuring that the dataset comprising a person’s social media identity is accounted for and monitored should reduce the risk of that information being used nefariously.

Avoiding sad reminders. Spammers have no qualms with commandeering a dead person’s email account. As one Virginia family knows, putting a stop to that form of “harassment” can be painful and inconvenient.

Keeping social media uncluttered. This reason lies more in the public interest than in the interest of the deceased and his or her relatives. The advertising model for social media revenue generation relies on the accuracy and effectiveness of information about the user base. The presence of a bunch of dead peoples’ accounts, which are orphaned, so to speak, dilutes the effectiveness of the other data points in the social graph. So it is a good thing to prune the accounts of the deceased, or otherwise see that they are properly curated.

Preserving our heritage for posterity. Think of the ways you know about your family members that came before you. Stories and oral tradition are generally annotated by photo albums, personal correspondence and other snippets of everyday life. Social media is becoming a preferred substrate for the collection of those snippets. To have that information wander off into the digital ether unaccounted for is to forsake a means of knowing about the past.

How big a deal is this, anyway? This Mashable article commenting on the U.S. government post says that last year about 500,000 Facebook users died. That’s about 0.0006% of the user base. (Incidentally, Facebook users seem much less likely to die than the general population, as 0.007% of the world’s entire population died last year. Go here if you want to do the math yourself.)

I say it’s kind of a big deal, but a deal that’s almost certain to get bigger.

Court refuses to consider common law invasion of privacy tort to support restraining order under Minnesota statute.

Olson v. LaBrie, 2012 WL 426585 (Minn. App. February 13, 2012)

Appellant sought a restraining order against his uncle, saying that his uncle engaged in harassment by posting family photos of appellant (including one of him in front of a Christmas tree) and mean commentary on Facebook. The trial court denied the restraining order. Appellant sought review with the state appellate court. On appeal, the court affirmed the denial of the restraining order.

It found that the photos and the commentary were mean and disrespectful, but that they could not form the basis for harassment. The court held that whether harassment occurred depended only on a reading of the statute (which provides, among other things, that a restraining order is appropriate to guard against “substantial adverse effects” on the privacy of another). It was not appropriate, the court held, to look to tort law on privacy to determine whether the statute called for a restraining order.

The day after a student drowned at the beach while on a field trip, a fifth grade teacher updated her Facebook status to say:

After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!

Three days later, she regretted saying that enough to delete the post. But the school had already found out about it and fired her. After going through the administrative channels, the teacher went to court to challenge her termination.

The court agreed that getting fired was too stiff a penalty. It found that the termination was so disproportionate to the offense, in the light of all the circumstances, that it was “shocking to one’s sense of fairness.” The teacher had an unblemished record before this incident, and what’s more, she posted the content outside of school and after school hours. And there was no evidence it affected her ability to teach.

But the court said some things about the teacher’s use of social media that were even more interesting. It drew on a notion of what scholars have called “contextual integrity” to evaluate the teacher’s online behavior:

[E]ven though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable.

So while the court found the teacher’s online comments to be “repulsive,” having her lose her job over them went too far.

Last night I appeared in a piece that aired on the 9 o’clock news here in Chicago, talking about the legal issues surrounding isanyoneup.com. (That site is definitely NSFW and I’m not linking to it because it doesn’t deserve the page rank help.) The site presents some interesting legal questions, like whether and to what extent it is shielded by Section 230 of the Communications Decency Act for the harm that arises from the content it publishes (I don’t think it is shielded completely). The site also engages in some pretty blatant copyright infringement, and does not enjoy safe harbor protection under the Digital Millennium Copyright Act.

Plaintiff worked in the county clerk’s office. Her old boss, whom she had supported in the election, lost. Her new boss (the newly-elected county clerk) began cleaning house and laid off some of the staff. Plaintiff survived that round of cuts, but lamented those terminations in a Facebook status update. Empathetic comments from county residents ensued.

The new boss found out about the status update and the comments. So he fired plaintiff. She sued, alleging that the termination violated her right to free speech. The boss moved for summary judgment, but the court denied the motion, sending the case to trial.

Here is some of the relevant Facebook content:

Plaintiff’s status update: So this week not going so good bad stuff all around.

Friend’s comment: Will be praying. Speak over those bad things positively.

Plaintiff’s comment: I am trying my heart goes out to the ladies in my office that were told by letter they were no longer needed…. It’s sad.

* * *

Friend’s comment: He’s making a mistake, but I knew he would, too bad….

* * *

Friend’s comment: I can’t believe a letter would be the manner of delivering such a message! I’m with the others…they will find some thing better and tell them this is an opportunity and not a closed door. Prayers for you and friends.

* * *

Friend’s comment: How could you expect anything else from [defendant], he was an…well nevermind.

Courts addressing claims by public employees who contend that they have been discharged for exercising their right to free speech must employ a two-step inquiry: First, the court must determine whether the speech may be described as “speech on a matter of public concern.” If so, the second step involves balancing the employee’s right to free speech against the interests of the public employer.

In this case, the court found the speech to be on a matter of public concern because:

the statements were made in a “public domain”

those who saw the statements (many of whom were residents of the county) understood them to be about terminations in the clerk’s office

some of the comments contained criticism of the termination decision

six constituents of the new clerk called his office to complain

the press and media had covered the situation

As for the second step in the analysis, namely, balancing the employee’s right to free speech against the interests of the public employer, the court did not even undertake a balancing test, as there simply was no evidence that the status update and the comments disrupted the operations of the clerk’s office.

Defendant was hired to be plaintiffs’ “video and social media producer,” with responsibilities that included maintaining social media pages in connection with the online marketing of plaintiffs’ products. After she was terminated, she refused to tell her former employers the usernames and passwords for various social media accounts. (The case doesn’t say which ones, but it’s probably safe to assume these were Facebook pages and maybe Twitter accounts.) So plaintiffs sued, and sought a preliminary injunction requiring defendant to return the login information. The court granted the motion for preliminary injunction.

The court found that plaintiffs had come forward with sufficient evidence to support a finding of irreparable harm if the login information was not returned prior to a final disposition in the case:

Plaintiffs depend heavily on their online presence to advertise their businesses, which requires the ability to continuously update their profiles and pages and react to online trends. The inability to do so unquestionably has a negative effect on plaintiffs’ reputation and ability to remain competitive, and the magnitude of that effect is difficult, if not impossible, to quantify in monetary terms. Such injury constitutes irreparable harm.

Defendant argued there would not be irreparable harm because the web content had not been updated in over two years. But the court rejected that argument, mainly because it would have been unfair to let the defendant benefit from her own failure to perform her job responsibilities:

Defendant was employed by plaintiffs for the entirety of that period, and she acknowledges that it was her responsibility to post content to those websites. Defendant cannot use her own failure to perform her duties as a defense.

Moreover, the court found that the plaintiffs would lose out by not being able to leverage new opportunities. For example, plaintiffs had recently hopped on the copy Groupon bandwagon by participating in “daily deal” promotions. The court noted that the success of those promotions depended heavily on tie-ins with social media. So in this way the unavailability of the social media login information also contributed to irreparable harm.

A Connecticut state court held that prosecuting a blogger for posting content online encouraging others to use violence did not violate the blogger’s First Amendment right to free speech.

Defendant was charged under a Connecticut statute prohibiting individuals from “inciting injury to persons or property.” Angry about a bill in the state General Assembly that would have removed financial oversight of Catholic parishes from priests and bishops, defendant posted the following statements to his blog:

[T]he Founding Fathers gave us the tools necessary to resolve [this] tyranny: The Second Amendment

[My organization] advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON [my radio show], we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of [a state ethics officer].

These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.

If any state attorney, police department or court thinks they’re going to get uppity with us about this, I suspect we have enough bullets to put them down too

Defendant challenged the application of the state statute as unconstitutional. The court disagreed, finding there to be “little dispute that the defendant’s message explicitly advocate[ed] using violence.” Moreover, the court found the threatened violence to be “imminent and likely.” The blog content said that the home address of the legislators and government officials would be released the following day.

Though the court did not find that a substantial number of persons would actually take up arms, it did note, in a nod to 9/11, “the devastation that religious fanaticism can produce in this country.” As such, there was a sufficient basis to say that defendant’s vitriolic language had a substantial capacity to propel action to kill or injure a person.

Plaintiff filed a civil rights lawsuit against the local jail and other governmnet officials after she gave birth while incarcerated. She claimed, among other things, that the jail’s failure to get her proper medical care before and during the delivery caused her extreme humiliation, mental anguish and emotional distress.

The defendants tried an extremely bizarre and highly questionable tactic — they sought to use provocative photos purportedly copied from plaintiff’s MySpace profile, to demonatrate that it is “less probable that [plaintiff] would experience humiliation and mental anguish by being in a jail cell while delivering a baby.” Defendants claimed that the photos were “of such a nature that a reasonable person would be embarrassed if such photographs were placed in public view.”

In other words, defendants argued that because plaintiff would post photos like that of herself online, she did not have the dignity to be free from being ignored or called a child and a liar during labor.

The court granted plaintiff’s motion in limine, excluding the photos from evidence. It found that the photos were irrelevant:

Although the appearance of provocative photos online may cause some humiliation, it bears no relation at all to the extreme humiliation and mental anguish a woman forced to go through labor on her own in a jail cell would bring.

The court also found that the defendants had not properly authenticated the photos, i.e., had not provided enough supporting evidence to show that they actually were of plaintiff. The photos that the defendants offered bore “no indicia of authenticity, such as a web address or a photo of these images on the public MySpace account from which Defendants claim they originated.”

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Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).